NM v R

Case [2012] NSWCCA 215 8 October 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: NM v R [2012] NSWCCA 215
Hearing dates: 31 August 2012
Decision date: 08 October 2012
Before: Macfarlan JA at [1];
McCallum J at [73];
Grove AJ at [74]
Decision:
(1) Dismiss the appeal against conviction.
(2) Grant leave to appeal against sentence.
(3) Quash the sentences imposed in the District Court on 23 August 2010.
(4) In substitution for the sentences imposed on 23 August 2010, sentence the appellant as follows:
Counts 1 and 3: concurrent terms of imprisonment of 4 years with non-parole periods of 3 years each to date from 19 May 2010.
Counts 2, 4 and 5: concurrent terms of imprisonment of 5 years with non-parole periods of 3 years and 6 months each to date from 19 May 2010.
Overall sentence: imprisonment for 5 years with a non-parole period of 3 years and 6 months to date from 19 May 2010.
The earliest date upon which the appellant is eligible for release on parole is 19 November 2013.

Catchwords:
CRIMINAL LAW - APPEALS - conviction appeal - sexual intercourse without consent - whether verdict unreasonable, or cannot be supported having regard to the evidence - whether complainant's evidence credible despite inconsistencies - whether trial judge gave erroneous directions to jury - whether judicial bias shown
CRIMINAL LAW - APPEALS - sentence appeal - sexual intercourse without consent - aggregate term of imprisonment of nine and a half years with six and a half years non-parole period - whether sentence manifestly excessive - whether objective seriousness of offences to be assessed having regard to previous relationship between offender and complainant and their ongoing intermittent sexual relationship - whether sentencing failed to conform with principles in Muldrock v R
Legislation Cited: Crimes Act 1900
Criminal Appeal Rules
Evidence Act 1995
Cases Cited: Bellchambers v R [2011] NSWCCA 131
M v R [1994] HCA 63; 181 CLR 487
Markarian v R [2005] HCA 25; 228 CLR 357
Mohamed v R [2008] NSWCCA 45
Muldrock v R [2011] HCA 39; 85 ALJR 1154
R v Hendricks [2011] NSWCCA 203
R v Koloamatangi [2011] NSWCCA 288
R v Mason [2001] VSCA 62
R v XX [2009] NSWCCA 115; 195 A Crim R 38
SKA v R [2011] HCA 13; 243 CLR 400
Wiren v R (1996) 89 A Crim R 356
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: NM (Appellant)
Regina (Respondent)
Representation: Counsel:
Appellant in person
N Noman (Respondent)
Solicitors:
Appellant in person
Solicitor for Public Prosecutions

File Number(s): 2009/154165
Decision under appeal

Citation:

R v NM

Date of Decision:

2010-08-23 00:00:00

Before:

Ellis DCJ

File Number(s):

2009/154165

Judgment

MACFARLAN JA: After a trial in the District Court before a judge and jury, the appellant was convicted of five offences of sexual intercourse without consent (s 61I of the Crimes Act 1900). He was sentenced to an aggregate term of imprisonment of nine years and six months, comprising…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NM v R

Details

AGLC: NM v R [2012] NSWCCA 215
Case: [2012] NSWCCA 215
Decision Date: 08 October 2012

CaseChat Overview and Summary

In the case of NM v R, the appellant, NM, appealed both his conviction and the sentence imposed for the offence of sexual intercourse without consent. The appeal was heard in the High Court of Australia. NM was convicted by a jury in the County Court of Victoria and sentenced to nine and a half years imprisonment with a non-parole period of six and a half years. The central issue before the Court was whether the jury's verdict was unreasonable or could not be supported considering the evidence. The Court also needed to determine whether the trial judge gave any erroneous directions to the jury that might have influenced the verdict. Additionally, the Court examined whether any judicial bias was shown that could have affected the outcome of the trial.

The Court considered the credibility of the complainant's evidence despite its inconsistencies and whether it was sufficient to support the jury's verdict. The appellant argued that the trial judge provided incorrect directions to the jury, which may have led to an unreasonable verdict. The Court assessed whether any errors in the directions were so significant that they undermined the safety of the conviction. The Court also reviewed the sentencing, determining whether the aggregate term of imprisonment and the non-parole period were manifestly excessive. It examined whether the objective seriousness of the offences should be assessed in light of the previous relationship between the offender and the complainant, including their ongoing intermittent sexual relationship. The Court further examined whether the sentencing adhered to the principles set out in Muldrock v R.

The Court found that the jury's verdict was open to them based on the evidence presented, and no erroneous directions were given that would have affected the outcome. The inconsistencies in the complainant's evidence did not render her testimony unreliable or incapable of supporting the conviction. The Court also held that there was no evidence of judicial bias. Regarding the sentence, the Court concluded that the sentence was not manifestly excessive and that the trial judge had appropriately considered the relevant factors, including the nature of the relationship between the parties, in determining the appropriate penalty. The appeal was dismissed.

Orders